The Champion

September-October 2012 , Page 38

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The Willfulness Element of a False Statement Charge

By Paul Mogin

Defense lawyers and civil liberties lawyers have long recognized the risk of unfairness and overreaching posed by 18 U.S.C. § 1001, the federal false statement statute.1 Recently, however, concern about § 1001 has surfaced in other quarters as well. Two years ago, Judge Brett Kavanaugh of the D.C. Circuit described the statute as “ever-metastasizing” and warned that “§ 1001 prosecutions can pose a risk of abuse and injustice.”2 Earlier this year, Judge Grady Jolly of the Fifth Circuit protested that his colleagues had “taken leave of a common sense application of the law”3 in sustaining a false statement conviction, and former Deputy Assistant Attorney General Stephen Saltzburg declared that “[t]here is no statute out there that’s more pernicious.”4

A person violates § 1001 if, “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the government of the United States,” he “knowingly and willfully” conceals a material fact by a “trick,

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